Pentagon throws out foot soldier’s Guantánamo war court conviction

A retired Marine general responsible for the Guantánamo war court has overturned the terror conviction through plea bargain of a Sudanese man who was sent home a little over a year ago as a war criminal, the Pentagon disclosed Friday.

In 2011, Noor Uthman Mohammed pleaded guilty to providing material support for terror in in exchange for his potential testimony against other captives and certain release from Guantánamo.

He admitted to being a small-arms and artillery weapons instructor at an Afghan training camp in the ’90s, and was repatriated in December 2013. He is now 53, and little is known about what became of him.

Friday, a Pentagon announcement said the Convening Authority for Military Commissions, a job currently held by retired Marine Maj. Gen. Vaughn A. Ary, threw out the case “in the interests of justice and under the rule of law.”

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Civilian courts have ruled that providing material support for terror was not a legitimate war crime for actions that occurred before the adoption of the Military Commissions Act of 2006. It was adopted by Congress during the Bush administration to try to prosecute accused war criminals of al-Qaida captured after the Sept. 11, 2001 attacks.

The Pentagon framed it this way: “Subsequent to his commission proceedings, decisions by the D.C. Circuit Court of Appeals in separate commissions cases established that it was legal error to try the offense of providing material support or terrorism before a military commission.”

Noor got to Guantánamo in May 2002 and went home without ever testifying at any war crimes trial.

It was the job of Ary’s office to approve the record. Instead he “disapproved” the “findings and sentence,” the Pentagon said. It did not release the underlying documents that Ary signed.

Reached by phone Friday night in Phoenix, Noor’s civilian attorney, Howard Cabot, said the freed captive was likely unaware of the outcome. The two had not been in contact since his return, he said.

Noor’s defense team abandoned an argument that the charges were illegitimate to cut the plea deal, and Cabot said it was a worthwhile trade-off.

“Noor’s been home for a year and change,” he said. “Now we have a legal decision that basically says for people in the future that these particular charges are ex post facto.”

Noor was was among the few foot soldier cases the Pentagon chose to prosecute at Guantánamo, and may have chosen him because of the company he kept.

Pakistani security forces picked him up in Faisalabad, Pakistan, after the 9/11 attacks at the same safe house as a prized war-on-terror captive, Zayn Abdeen al Hussain — better known as Abu Zubaydah, who would be waterboarded 83 times by the CIA in a bid to break him. A prosecutor screened a video of an anti-American rant by Abu Zubaydah at Noor’s sentencing hearing to argue guilt by association in setting his punishment.

Defense lawyers countered with Noor’s account of the way U.S. troops treated him at the Bagram air base in Afghanistan prior to his August 2002 transfer to Guantánamo — painful shackling, blasts of hot and cold, deafening music and being left naked in sight of female soldiers.

After his guilty plea, a jury of U.S. military officers sentenced him to the maximum 14 years imprisonment, only to learn that a secret plea deal would expire his sentence in December 2013. Only if the panel had given him less time would the sentence have been relevant.